A staff report and background file (which contains the many of the more contentious aspects that are not explicated in the staff report) concerning “natural gardens” currently awaiting Council review is alarming and unconstitutional. Your help is needed to stop this draconian proposal. Please contact your Councillor and ask your friends and social media contacts to do the same, send additional messages of protest to clerk@toronto.caor register to speak before Council about this important issue.

There remain only a few items on the agenda, so LS17.2 should be early in the day. Session begins 9:30 am in Toronto Council Chambers.

In recent years, a number of residents, faced with Long Grass & Weed (bylaw 489–click on the title “Chapter 489” on the linked page to download the pdf file) have chosen to file claims for exemption from the bylaw as “natural gardens”. Very few, if indeed any, of these gardens actually contained the tall grass or noxious weeds prohibited by the bylaw — they simply did not fit within the aesthetic preferences of the City’s inspectors. More recently, this department has added its own online re-interpretation of the actual bylaw to support specious charges…changing “maintained” to “manicured”, allowing the inclusion of unspecified and non-prohibited plants as “weeds” in staff reports, and asking that those applying for exemption obtain the support of their neighbours in order to grow a “natural garden” on their own property. No other style of garden is expected to hold to the same standards.

In response to the upsurge in exemption requests, several Councillors requested additional information on dealing with them from staff.
City Council on July 11, 12 and 13, 2012, adopted the following:Request the Executive Director, Municipal Licensing and Standards, to review Chapter 489, Grass and Weeds, Section 489 E and submit a report to the Licensing and Standards Committee on any recommended changes to the By-law and exemption process to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.

In response to this request, the MLS Department submitted a report to the November 16, 2012 meeting of the Licensing & Standards Committee. This report did not address decreasing the issuance of notices, but rather proposed methods to:
– remove the process from Council and the public eye,
– effectively impose a $200 fine,
– increase power over the private yards of those residents that continue to insist that their gardens are not in violation of the bylaw
– impose other penalties on those not surrendering to the unlawful demands of the inspector.
The Committee did remove one contentious proposal, that of applying costs of ongoing inspections to gardens that been granted exemptions —unnecessary and unwarranted inspections — to the homeowner.

This proposal in no way seeks to “to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.” but rather reduces the visibility of their continued issuance from the view of Council and the general public and places increased power in the hands of the Department that has repeatedly proven that it cannot be trusted with this responsibility.The enormous distress caused to the residents receiving these intrusive notices is exacerbated not relieved.

This Department admitted at Committee that its staff do not possess the knowledge to adequately assess what constitutes a natural garden…not even to the extent of recognizing unmown turf grasses and the short list of noxious weeds prohibited under the official bylaw, so notices are sent by registered mail without any indication that the property is in violation.

“Natural Gardens” are grouped with those violating “health, safety, and nuisance” standards…indicating that the Department is predisposed against “natural gardens”.

On receiving a complaint, the address of the property and the alleged infractions are publicly listed on the City’s website…contravening privacy legislation and without any proof that an infraction has occurred.

Homeowners who do not capitulate to the the initial letter (which threatens to cut the garden in its entirety and add costs for inspection services, without explicating what faults have been alleged), are eligible to meet with the City’s sole horticulturist that is assigned to visit gardens. The horticulturalist will then issue a report with her assessment of the property. The proposal places interpretation of the horticulturalists report in the hands of the very department that has admitted it is not qualified to interpret such assessments, by delegating authority to grant exemptions to the Executive Director of Licensing and Standards…avoiding any public hearing.

Residents still insisting that theirs is a legal garden must now pay a $200 fee to lodge an appeal to their Community Council. (It is worth noting that most such appeals thus far in 2012 have been granted by Community Council…and that no staff reports, including those for which staff have recommended against approval, have alleged any serious infraction of bylaw 489. The success of the appeal process, in 2012 and in prior years, has depended more upon the aesthetic preferences of individual Councillors and staff than on the presence of actual health or safety infractions).

Section (5) of Appendix A places further restrictions on “natural gardens” that are not included in the by law and which are not applied to any other style of garden; including authorizing staff to specify:

Should the resident elect to appeal Staff’s decision, notice to all properties within 100 metres of the home and “any other concerned area residents” will be issued…further invading the privacy of the resident and adding unnecessary costs to the process, which the City intends to pass on to the resident.

“failure to comply or appeal the decision will result in escalated enforcement including City remedial action and all related costs will be applied to the tax roll for subject premises”…all without any proof that any regulated infractions have occurred.

Appendix A curtails the actual wording of the bylaw to read “defines “grass and weeds” as all noxious weeds and local weeds designated under the Weed Control Act, and other vegetation growth”. City lawyers have concurred that they interpret the bylaw as applying ANY plants, including trees and shrubs, exceeding an 8 inch height solely at the discretion of the inspector. This is clearly not the intent of the bylaw.

The report continues to require the resident to prove that absolutely no weeds are present (as little as a single stalk of a non-regulated “weed” can appear on a staff list of “weeds on the property”), rather than placing the onus on the complainant or staff to prove that the bylaw has been violated. Most reports contain lists of plants that are not regulated, simply those that the horticulturist deems ‘undesirable’.

The background file contends that the role of the City horticulturist is not to identify prohibited weeds and tall turf grass but to “assist the public in beautifying their yards based on a set of criteria”. It is not the role of municipal staff to determine what is beautiful.

Report attachments offer links to City sponsored publications that promote the use of many harmful invasive plants and few native species.

Appendix A of the Background files further states “Council has authorized regulations that will facilitate natural gardens contributing positively to the quality of Toronto’s appearance and its visual character to enhance the image and attractiveness of Toronto…”, re-iterating the department’s illegal focus on aesthetic interpretations being used to regulate gardens.

Information NOT included in the Staff Report:

The City only has the power to regulate health and safety aspects of private property. eg. It may impose preset height restrictions where vegetation may impede traffic sight lines.

Ontario Courts have already ruled twice that aesthetic considerations are vague, subjective, and that garden design is a protected form of expression under the Canadian Charter of Rights and Freedoms (Section 2B). It is also protected under Freedom of Conscious, although that claim has not yet been ruled on. The Charter takes precedence over Municipal by laws.

“natural” gardens are specifically exempted under the bylaw and should not need to go through an appeals process, which becomes a circular argument stating that all that is required to be exempt from prohibitions against tall grass and weeds is that they not harbour tall grass or noxious weeds.

Many more residents than the “10” listed in the staff report (there are 14 on record as of October 10, 2012) receive violation notices, some waiting for months after receiving the notice which threatens to cut their garden, to learn whether or not their gardens remain in jeopardy. The horticulturist reviewing these gardens, mentioned having 26 on her current list.

The Ontario Weed Act, on which the by law relies, only allows actual noxious weeds, not surrounding vegetation, to be cut…and only where these weeds may impact agricultural or horticultural concerns.

The Department of Licensing and Standards has a long history of bullying behaviour, of mismanaging complaints concerning private gardens, and of wasting funds including repeated intrusions onto private property that are not health or safety hazards and the unnecessary issuance of notices sent by registered mail. It has admitted it does not possess the necessary expertise to assess private gardens. Still it persists in attempts to increase its hold on this inspection process…possibly in fear of losing a large portion of its budget should these unconstitutional intrusions onto private property be curtailed as Council requested.

This Department has clearly demonstrated that its motivation is to not to protect the health, safety and well being of the residents of Toronto, but its departmental budget and authority.

Let’s save Toronto money, improve the environment, the health of Toronto communities, and obey the Canadian Constitution by removing the opportunity to harass ecological gardeners from the auspices of the Licensing and Standards Department.

A “Natural Garden” of “Long Grass and Weeds”? This native plant garden has been charged three times under by law 489…despite it hosting endangered species and having no turf grass and no noxious weeds. The MLS Department is well aware of the owners restoration activities yet persists in upholding complaints against it as they consider it “unkempt”.